87 Cal. App. 4th 684
Decided March 6, 2001
Hanlon, J., Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In this case we hold that a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library.
This case was filed against respondent City of Livermore by appellant Kathleen R. individually, and in her capacities as a taxpayer and as guardian ad litem for Brandon P., her minor son. The amended complaint includes causes of action for waste of public funds, nuisance, premises liability, and denial of substantive due process. Respondent's demurrer was sustained without leave to amend on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the case was dismissed.
Respondent's library has computers linked to the Internet, which patrons of any age are free to use. Twelve-year-old Brandon went to the computers without appellant's knowledge and downloaded sexually explicit photos from the Internet onto a floppy disk that he brought to the library. Without any adult's knowledge or permission Brandon printed the photos at a relative's computer. He engaged in this activity on about 10 occasions. Appellant alleges that the photos Brandon obtained are harmful to minors and that some of them are obscene. One of the photos is reproduced in color on the first page of the complaint and others are attached as exhibits. In one of the exhibits a middle school schedule is superimposed over the image of a scantily clad woman. Brandon showed the photos to other minors.
A copy of the Internet access policy adopted by respondent's library board of trustees is attached to the complaint. This policy states in part: "The Board of Trustees supports the idea that all members of the community have free and equal access to the entire range of library resources, regardless of content, approach, format or amount of detail. These rights extend to all users of the public library including minors. . . . [P] . . . [P] . . . The Internet and its available resources may contain materials of a controversial nature. The Livermore Public Library does not monitor and has no control over the information accessed through the Internet and cannot be held responsible for its content. . . . Library patrons use the Internet at their own risk. . . . [P] . . . [P] Individuals must accept responsibility for determining what is appropriate. The Library . . . upholds and affirms the right of each individual to have access to constitutionally protected materials and also affirms the right and responsibility of parents to determine and monitor their children's use of library materials and resources. Parents and guardians are encouraged to work closely with their children. Parents are expected to monitor and supervise children's use of the Internet in selecting material that is consistent with personal and family values. The Livermore Public Library does not provide this monitoring or supervision." The policy lists examples of "unacceptable use" of computers, including use "for other than educational, informational and recreational purposes," or for "unauthorized, illegal or unethical purposes."
In her state law claims appellant alleges that: Respondent is wasting public funds on computers that provide access to obscenity and matter harmful to minors; it is a public nuisance for respondent to knowingly allow its computers to be used to access obscenity and matter harmful to minors; and the library is unsafe for minors because the computers provide them with access to harmful matter. The section 1983 claim alleges that: Minors expected to go to the library to complete public school assignments; the library encourages minors to use its computers; the library has a policy of allowing minors to view and download and pornography on the computers; minors exposed to obscenity and pornography suffer emotional and psychological damage and damage to their nervous systems; respondent knows its actions and policies are placing minors at grave risk of harm; and respondent tries to keep parents ignorant of that risk.
All of appellant's causes of action seek injunctive relief. The state claims seek to enjoin respondent: from acquiring or maintaining computers which allow people to access obscenity or minors to access harmful sexual matter; from maintaining any premises where minors have that ability; and from expending public funds on such computers. The section 1983 claim is to enjoin respondent from "knowingly and intentionally allowing its computers to display obscene and pornographic images where [Brandon] and other children can view them." The nuisance and premises liability claims also request declarations that respondent is liable for all future damages appellant's children suffer from "sexual and other material harmful to minors" they access at library computers connected to the Internet.
A public library is in a "damned if you do, damned if you don't" situation in deciding whether to restrict access to the Internet from its computers to prevent harm to minors. A case in Virginia shows that the library can be sued if it limits Internet access; this case shows that the library can be sued if it does not. This case, unlike the Virginia one, is untenable. The state law claims in this case are preempted by federal law, and there is no entitlement to relief under section 1983.
The state causes of action are precluded by title 47 United States Code section 230. Section 230(c)(1) states that: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision prohibits "hold[ing] interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium." This prohibition was enacted "to promote the continued development of the Internet and other interactive computer services and other interactive media," and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Thus, "[b]y its plain language, creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."
Respondent is entitled to that immunity here. An "interactive computer service" is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." Respondent provides an "interactive computer service" in this case because its library computers enable multiple users to access the Internet. Respondent is not an "information content provider" in this case because it is not "responsible, in whole or in part, for the creation or development" of any of the harmful matter accessible through its computers.
Appellant's attempt to state a case for violation of her son's right to substantive due process also fails. The government has an interest in protecting minors from harmful materials on the Internet, but it does not have a constitutional duty to do so. Due process is afforded "to protect the people from the State, not to ensure that the State protect[s] them from each other." Thus, as a general rule "[t]he State's failure to prevent harm inflicted by a private actor does not give rise to a cause of action under section 1983." Two exceptions to this general rule have been recognized: the "special relationship" or "'functional custody' " exception; and the "'danger creation' " or "'snake-pit' " exception. Neither of those exceptions applies here.
The special relationship or functional custody exception applies "when the State takes a person into its custody and holds him there against his will"; in that situation, the state has "a corresponding duty to assume some responsibility for [the person's] safety." "DeShaney left undefined the precise measure of state restraint that engenders an individual's right to claim a corresponding affirmative duty." However, DeShaney set a "high standard" for liability when it indicated that the "' "deprivation of liberty"' " which triggers the protections of due process "'is the State's affirmative act of restraining the individual's freedom to act on his own behalf .'" Given this stringent standard, most courts have declined to find that students are in the functional custody of schools despite the compulsory attendance laws. Similarly here, even if as appellant alleges minors are expected to go to respondent's library to complete public school assignments, the library does not exercise "'pervasive control' " over minors, much less restrain their freedom to act on their own behalf, by allowing them to freely use the library computers.
Nor could the library's open Internet access policy be considered a state-created danger for purposes of the "snake pit" exception to the rule of nonliability for failure to provide protective services. For the danger creation exception to apply, it is not enough that the plaintiff's harm might have been foreseeable. Thus, respondent's alleged awareness that minors are being exposed at library computers to obscenity and harmful matter from the Internet is insufficient to create any liability. It must further appear that the state has "'affirmatively plac[ed] an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid.' " For example, in Wood v. Ostrander, the "classic" danger creation case, a state trooper impounded the plaintiff's car and abandoned her in a highcrime area in the middle of the night.
A library does not "affirmatively plac[e]" minors in danger by allowing them unsupervised use of computers which are linked to the Internet. The situation here is analogous to the one considered in Carlton v. Cleburne County, Ark., where a county was sued for violating the substantive due process rights of people who were killed and injured when a bridge maintained by the county collapsed. The plaintiffs argued that the county had placed them in danger by promoting the bridge as a tourist attraction when it knew that the bridge was deteriorating. The court held that "offering a location as a tourist attraction is not the type of affirmative government action that creates a duty to protect under DeShaney. [Plaintiffs] allege no affirmative act on the part of government officials directly placing them on the bridge. Nor did the County['s] actions 'create the danger' causing the bridge to collapse. To the contrary, accepting the [plaintiffs'] allegations as true, the bridge cables broke because of internal corrosion caused by rust." The library's Internet policy likewise did not compel minors to use the library's computers, or create any of the harmful matter accessible through such use.
Appellant attempts to avoid the rule that due process does not guarantee protective services by distorting the library's policy and practices. As previously noted, appellant's briefs assert that the library has a policy of providing obscene pornography to minors. Appellant contends that the policy, as so conceived, violates minors' "liberty interest in personal security and freedom from restraint and infliction of pain." Appellant submits that minors are seriously injured by viewing obscene pornography, that freedom from infliction of such pain is a fundamental constitutional right which cannot be infringed without a compelling state interest, and that there is no such interest here because "there is no 'compelling' reason to give children any access to the Internet at all."
These arguments are insupportable because it is not the policy of respondent's library to provide minors with obscene pornography. Provision of computer-transmitted obscenity to minors would contravene the library policy's directives that computers be used for educational, informational, recreational, but not illegal, purposes. The policy warns that "controversial" material is available on the Internet, that patrons who use the Internet do so "at their own risk," and that the library does not supervise minors' use of the Internet. This acknowledgement that the library does not undertake to protect minors from harmful matter on the Internet does not imply that the library intends for minors to be exposed to obscenity. The library's affirmation of "the right of each individual to have access to constitutionally protected materials" is not an endorsement of minors' access to obscenity.
Since it is not the policy of respondent's library to provide obscene pornography to minors, we are not called upon to decide whether minors have a fundamental right to freedom from exposure to such material. There is no state policy infringing on any such interest in this instance; there is only a failure to render protection from private sector harm which, under well-settled principles, is not actionable under section 1983. Finally, if as appellant's briefs maintain there are librarians in respondent's employment who are providing obscene pornography to minors, respondent is not liable under section 1983 for their unauthorized actions.
The judgment of dismissal is affirmed with costs to respondent.
Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004